Selkin v. State for Professional Medical Conduct

• Decision Date: 03 September 1999
• Docket Number: No. 99 Civ. 8617(WCC).,99 Civ. 8617(WCC).
• Citation: 63 F.Supp.2d 397
• Parties: Stuart G. SELKIN, M.D., Plaintiff, v. The STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, a board under the auspices of the New York State Department of Health, and Edwin L. Smith, Defendants.
• Court: U.S. District Court — Southern District of New York

63 F.Supp.2d 397

Stuart G. SELKIN, M.D., Plaintiff, v. The STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, a board under the auspices of the New York State Department of Health, and Edwin L. Smith, Defendants.

No. 99 Civ. 8617(WCC).

United States District Court, S.D. New York.

September 3, 1999.

Wood & Scher, Scarsdale, NY, William L. Wood, Jr., of counsel, for plaintiff.

Eliot Spitzer, Attorney General of the State of New York, New York City, Barbara K. Hathaway, Asst. Attorney General, of counsel, for defendants.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

This civil rights action, brought under 42 U.S.C. § 1983, is presently before the Court on the motion of plaintiff Stuart G. Selkin, M.D. ("Selkin") for a preliminary injunction enjoining defendants State Board for Professional Medical Conduct ("SBPMC") and Edwin L. Smith from revoking plaintiff's license to practice medicine. The Court has original jurisdiction over the action pursuant to 28 U.S.C. §§ 1343 and 1331. For the reasons discussed below, plaintiff's motion is denied.

BACKGROUND

I. The Administrative Proceeding

Selkin is a Board Certified Otolaryngologist (ear, nose and throat specialist) who received his license to practice medicine in New York in 1967. On or about October 14, 1998, charges of professional misconduct were filed against Selkin by the SBPMC, a board acting under the auspices of the New York State Department of Health, which has been charged by the legislature with responsibility for overseeing the competence and integrity of those licensed to practice medicine in New York State. See N.Y.PUB. HEALTH LAW § 230. Selkin was served with a Notice of Hearing and Statement of Charges on October 19, 1998. The charges included, inter alia, moral unfitness to practice medicine (based upon allegations that Selkin had consensual sexual relations with four women while they were his patients), gross negligence, gross incompetence, negligence on more than one occasion, fraudulent practice and failure to maintain appropriate medical records.

A hearing was held before a three-member committee of the SBPMC (the "Committee") from December 28, 1998 through March 19, 1999, and was presided over by Edwin L. Smith, an Administrative Law Judge.¹ At said hearing, Selkin was represented by an attorney and had an opportunity to present evidence and witnesses on his behalf, to have subpoenas issued on his behalf, and to cross-examine any witnesses testifying against him. See N.Y.PUB. HEALTH LAW § 230(10)(f).

On or about June 1, 1999, the Committee issued its Determination and Order, BPMC-99-122, dismissing all charges against Selkin with the exception of one count of negligence on more than one occasion (for which he was fined $10,000), two counts of failing to maintain proper medical records (for which he was fined an additional $10,000), and two counts of moral unfitness. In particular, the Committee found that:

E. [Selkin] engaged in a sexual relationship with his patient, Patient E

78. [Selkin] testified that he had sexual relations with Patient E while she was a patient for an 18 month period ending in early 1990 and that she was a patient of his from 1986 until early 1990.

79. After Patient E's husband, Mr. N, discovered the sexual relationship between [Selkin] and his wife, Patient E, there was an armed confrontation, with guns drawn, between [Selkin] and Mr. N, resulting in the arrest of Mr. N.

80. [Selkin]'s relationship with Patient E was in violation of a long-standing consensus within the medical profession that sexual contact or sexual relations between physicians and patients are unethical....

G. [Selkin] engaged in a sexual relationship with his patient, Patient G

83. By letter dated December 29, 1994, [Selkin] wrote to John Flynn, an investigator with OPMC, that he had a sexual relationship with a single woman, later identified as Patient G, who was a patient at the time of that relationship.

84. [Selkin] testified at the hearing that his letter was an incorrect statement based, not on his recollection, rather on "information" from Patient G that it was her son that was a patient at the time that she and [Selkin] had a sexual relationship.

85. Patient G did not testify at the hearing, nor did [Selkin] produce corroborating documentation as to the dates in question.

86. [Selkin]'s relationship with Patient G was in violation of a long-standing consensus within the medical profession that sexual contact or sexual relations between physicians and patients are unethical.

In support of its conclusion that engaging in consensual sexual relations with current patients constitutes "professional misconduct" pursuant to N.Y.EDUC.LAW § 6530,² the Committee quoted the Council of Ethical and Judicial Affairs of the American Medical Association, Report on Sexual Misconduct in the Practice of Medicine, issued on November 21, 1991, which states that "[t]here is a long-standing consensus within the medical profession that sexual relations between physicians and patients are unethical." The Committee also cited the Hippocratic Oath and Opinion 8.14 of the Code of Medical Ethics, issued in 1986, which opines that "sexual misconduct in the practice of medicine violates the trust the patient imposes on the physician and is unethical." The Committee went on to note that:

Given the nature of the doctor/patient relationship, there cannot be consent to an act which is per se unethical. The need to maintain the doctor's objectivity in the treatment of a patient and to avoid unnecessary complications in that relationship not only with the patient but, as well, with the patient's family ... leave [sic] no doubt that this activity must be viewed with abject condemnation.

The penalty imposed by the Committee with respect to its finding of moral unfitness was revocation of Selkin's license to practice medicine in the State of New York. Such revocation was to become effective upon service of the Committee's Determination and Order.

II. The Article 78 Proceeding

Selkin sought immediate review of the Committee's Determination and Order by instituting an Article 78 proceeding in the Supreme Court of the State of New York, Appellate Division, Third Department, In re Selkin v. State Bd. for Prof'l Med. Conduct, Docket No. 84970. See N.Y.PUB. HEALTH LAW § 230-c(5); N.Y.C.P.L.R., ch. Eight, Art. 78. In connection therewith, Selkin obtained a Temporary Restraining Order ("TRO") dated June 15, 1999, staying enforcement of the Determination and Order (and therefore the revocation of his medical license) pending resolution of the Article 78 proceeding.

However, the SBPMC exercised its right to appeal the Committee's decision to the Administrative Review Board ("ARB"), an act which divests the Appellate Division of jurisdiction over the proceeding. See N.Y.PUB. HEALTH LAW §§ 230-c(4) and (5); In re Saunders v. State Bd. for Professional Medical Conduct, 253 A.D.2d 569, 678 N.Y.S.2d 912 (3d Dep't 1998). On the motion of the SBPMC, the Appellate Division accordingly dismissed Selkin's Article 78 proceeding by decision dated July 20, 1999. The TRO issued by the Appellate Division was subsequently vacated as of August 5, 1999.

III. The § 1983 Action

Under New York law, the ARB is prohibited from staying the enforcement of a Committee determination and order revoking a physician's medical license. See N.Y.PUB. HEALTH LAW § 230-c(4). Selkin therefore initiated this action under 42 U.S.C. § 1983 on August 4, 1999, alleging that by issuing BPMC-99-122, the Committee, acting under color of state law, has deprived him of his Constitutional rights to due process, freedom of intimate association and freedom from subjugation to an Ex Post Facto law. By Order to Show Cause, Selkin filed a complaint seeking a declaratory judgment nullifying the Determination and Order of the Committee as unconstitutional, and sought a temporary restraining order and preliminary and permanent injunctions enjoining enforcement of the same.

Although Selkin's application for a TRO was denied, the Honorable Sidney H. Stein, signed an Order to Show Cause dated August 4, 1999, requiring the SBPMC to show cause why a preliminary injunction should not be issued enjoining the enforcement of BPMC-99-122. Oral argument thereon was heard by this Court on August 27, 1999.

DISCUSSION

Generally, a party seeking a preliminary injunction must establish (a) irreparable harm and (b) either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See Latino Officers Ass'n v. Safir, 170 F.3d 167, 171 (2d Cir.1999); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). However, "[w]here, as here, the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,"³ the moving party is entitled to a preliminary injunction only if he can demonstrate a likelihood of success on the merits. Latino Officers Ass'n, 170 F.3d at 171; see also Union Carbide Agric. Products Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir. 1980).

Moreover, in light of the fact that the Committee's Determination and Order regained effect (and therefore Selkin's license was revoked) on August 5, 1999, he is not asking this Court to preserve the status quo; rather, he is asking us, in effect, to reinstate his medical license.⁴ Under such circumstances, Selkin must show a "substantial" likelihood of success on the merits, i.e., that his cause of action is "considerably more likely to succeed than fail." Eng v. Smith, 849 F.2d 80, 82 (2d Cir.1988) (where injunctive relief sought "does not merely maintain the status quo, but rather grants the movant substantially all the relief he ultimately seeks, a more stringent standard is required").⁵

The defendants...